Neuroimages and, more generally, neuroscience evidence are increasingly used in the courtroom in hope of mitigating punishment in criminal cases. Many legal commentators express concern because they fear that the prejudicial effect of such evidence significantly outweighs its probative value. In light of earlier empirical studies, this concern is predominantly directed toward the visual impact of neuroimages. Thus, the conventional wisdom in the legal literature is that the visual impact of neuroimages drives the overpersuasiveness of neuroscience evidence.
However, recent empirical studies draw into question the conventional wisdom because they show that neuroimages themselves are not overly persuasive. Thus, this Comment proposes a new theory—the structure/function paradigm—as a competing theory to the conventional wisdom. This paradigm posits that the type of brain abnormality drives the prejudicial nature of neuroscience evidence, not the visual impact of neuroimages. That is, laypeople perceive structural and functional brain abnormalities differently and view structural abnormalities as more causally potent than functional abnormalities. This Comment seeks to show that the structure/function paradigm provides a more consistent and compelling story than the conventional wisdom by resolving contradictions in the empirical studies and applying the paradigm to actual cases.61-5-8